EXHIBIT 2.34
SHARE SALE AGREEMENT
between
SAMANCOR LIMITED
("Seller")
and
UCAR CARBON COMPANY INC.
("Purchaser")
with regard to shares in EMSA (Proprietary) Limited ("EMSA") and
Carbographite Limited ("Carbographite")
CONTENTS
1. DEFINITIONS............................................................. 2
2. SALE.................................................................... 4
3. CONDITIONS PRECEDENT.................................................... 5
4. CLOSING PREPARATIONS.................................................... 7
5. CLOSING................................................................. 8
6. WAIVER OF RIGHTS........................................................ 10
7. REPRESENTATIONS AND WARRANTIES OF SELLER................................ 10
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER............................. 11
9. INDEMNITIES............................................................. 12
10. RESTRAINT UNDERTAKINGS.................................................. 13
11. SHAREHOLDERS AGREEMENT.................................................. 16
12. DEEDS OF SERVITUDE...................................................... 16
13. EXPENSES................................................................ 17
14. SUPPORT................................................................. 18
15. INDULGENCES............................................................. 18
16. ENTIRE AGREEMENT........................................................ 18
17. ARBITRATION............................................................. 19
18. GOVERNING LAW........................................................... 19
19. INTERPRETATION.......................................................... 20
20. GENERAL................................................................. 20
21. ADDRESSES FOR LEGAL PROCESSES AND NOTICES............................... 21
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APPENDICES
APPENDIX 1 NOTICE OF GENERAL MEETING OF EMSA
APPENDIX 2 NOTICE OF GENERAL MEETING OF CARBOGRAPHITE
APPENDIX 3 RETIREMENT FUNDS AND HEALTH PLAN AGREEMENT
APPENDIX 4 POWER OF ATTORNEY (WITH ATTACHED NOTARIAL DEED OR SERVITUDE)
APPENDIX 5 POWER OF ATTORNEY (WITH ATTACHED NOTARIAL DEED OF SERVITUDE)
APPENDIX 6 INTER COMPANY AGREEMENTS AND ARRANGEMENTS
APPENDIX 7 DRAWING OF RAILWAY SIDING SERVITUDE AREA; POWERLINE SERVITUDE
AREA; WATER PIPELINE SERVITUDE AREA; GAS PIPELINE SERVITUDE
AREA AND SEWAGE PIPELINE SERVITUDE AREA
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PREAMBLE
It is recorded, not as part of this Agreement, but purely by way of introduction
and explanation that -
A. the Seller and the Purchaser each own 50% (fifty per centum) of the
issued share capital of EMSA and Carbographite;
B. the parties have negotiated an agreement, in terms of which the Seller
will sell to the Purchaser all of the Seller's shares in EMSA and
Carbographite;
C. this Agreement replaces the Letter of Intent written by the Purchaser's
holding company UCAR International Inc. to the Seller on 12 February
1997.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
For the purposes of this Agreement and its Appendices, the following
terms shall, unless the context otherwise indicates or requires, bear the
meaning given in this Clause, and cognate terms shall bear corresponding
meanings -
1.1 "Affiliate" shall mean any company which is Samancor's
subsidiary company within the meaning of
subsidiary company in the South African
Companies Act No. 61 of 1973, as amended;
1.2 "Carbographite" shall mean Carbographite Limited, a company
incorporated and registered in the Republic
of
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South Africa under company registration no.
70/14329/06;
1.3 "Closing Date" shall mean 22 April 1997;
1.4 "Companies" shall mean EMSA and Carbographite;
1.5 "Conditions Precedent" shall mean the conditions precedent to this
Share Sale Agreement;
1.6 "Deeds of Servitude" shall mean notarial deeds of servitude
substantially in the form of the drafts which
are attached as part of Appendices 4 and 5;
1.7 "EMSA" shall mean EMSA (Proprietary) Limited, a
company incorporated and registered in the
Republic of South Africa under company
registration no. 65/08320/07;
1.8 "EMSA's Business" shall mean EMSA's past and present businesses
of designing, developing, manufacturing and
selling the kinds of carbon and graphite
products and engineered systems which EMSA
has sold in the past and is selling at
present, including modifications thereto, but
excluding the sale of Xxxxxxxxx paste
products and calcined anthracite products;
1.9 "EMSA's Premises" shall mean EMSA's premises situated at
Meyerton, Gauteng, Republic of South Africa;
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1.10 "Purchased Shares" shall mean the shares in the issued share
capital of the Companies which are sold by
the Seller and purchased by the Purchaser in
terms of this Share Sale Agreement;
1.11 "Purchase Price" shall mean US $75,000,000.00 (seventy five
million US Dollars);
1.12 "Purchaser" shall mean UCAR Carbon Company Inc., a
company incorporated and registered in
Delaware in the United States of America,
being a subsidiary of UCAR International
Inc.;
1.13 "Retirement Funds and shall mean the Retirement Funds and Health
Health Plan Agreement Plan Agreement which is to be executed and
delivered in terms of this Share Sale
Agreement;
1.14 "Seller" shall mean Samancor Limited, a company
incorporated and registered in the Republic
of South Africa under company registration
no. 01/8883/06;
1.15 "Seller's Premises" shall mean the Seller's premises situated at
Meyerton, Gauteng, Republic of South Africa.
2. SALE
2.1 The Seller hereby sells to the Purchaser and the Purchaser hereby
purchases from the Seller all of the shares held by the Seller in the
Companies, being shares comprising 50% (fifty per centum) of the entire
issued share capital of
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EMSA and 50% (fifty per centum) of the entire issued share capital of
Carbographite.
2.2 All risk in and benefits of the purchased shares shall pass from the
Seller to the Purchaser at midnight on the day prior to the Closing
Date.
2.3 The Purchase Price shall be paid and this Share Sale Agreement shall be
implemented in the manner provided below.
2.4 The Purchase Price shall be allocated as follows:
2.4.1 R106 500.00 (one hundred and six thousand, five hundred Rand) to
the Purchased Shares in Carbographite; and
2.4.2 the balance to the Purchased Shares in EMSA.
2.5 The Purchaser shall furnish to the Seller within a reasonable time
after the Closing Date unaudited management accounts of EMSA for the
period ending 0H00 on the Closing Date.
3. CONDITIONS PRECEDENT
3.1 This Share Sale Agreement, with the exception of Clauses 13 to 21,
shall be of no force or effect unless the following conditions
precedent are fulfilled by the close of business on 22 April 1997 -
3.1.1 approval of the sale of the Purchased Shares in terms of this
Agreement by the Seller's board of directors;
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3.1.2 approval of this Share Sale Agreement, the Retirement Funds and
Health Plan Agreement, the Deeds of Servitude and Appendices 4 and
5 by the Purchaser's board of directors;
3.1.3 receipt by the Purchaser of written confirmation by the Purchaser's
South African bank, acting as a duly authorized agent of the South
African Reserve Bank, that the sale of the Purchased Shares to the
Purchaser, the payment of the Purchase Price and the transfer of
the Purchased Shares to the Purchaser and the Purchaser's nominees,
all in terms of this Share Sale Agreement, has been approved, or
that such approval is not required, in terms of the Exchange
Control Regulations of the Republic of South Africa;
3.1.4 execution of -
3.1.4.1 the Retirement Funds and Health Plan Agreement, in the form of
the draft attached to this Share Sale Agreement and marked
Appendix 3;
3.1.4.2 a Power of Attorney granted by the Seller (with attached draft
Notarial Deed of Servitude between the Seller and EMSA) in the
form of the draft attached to this Share Sale Agreement and
marked Appendix 4.
3.1.4.3 a Power of Attorney granted by the Seller (with attached draft
Notarial Deed of Servitude between the Seller and EMSA) in the
form of the draft attached to this Share Sale Agreement and
marked Appendix 5.
3.1.5 a Power of Attorney granted by the Seller (with attached draft
Notarial Deed of Servitude between the Seller and EMSA) in the
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form of the draft attached to this Share Sale Agreement and
marked Appendix 5.
3.1.6 the requisite agreement by the employees of EMSA to the basic terms
and conditions of a Medical Aid / Health Scheme which will operate
for the benefit of persons who are employees of EMSA;
3.1.7 the requisite agreement by the employees of EMSA to the basic terms
and conditions of such new Pension and/or Provident Funds as may be
required for employees of EMSA in consequence of this Agreement.
3.2 Both parties shall use all reasonable endeavors to the extent that it
is within their power to do so, to procure the timely fulfillment of
those Conditions Precedent which are set out in Clauses 3.1.3 and
3.1.4.1.
3.3 The Seller shall use its reasonable endeavors to procure the timely
fulfillment of those Conditions Precedent which are set out in Clauses
3.1.1, 3.1.4.2 and 3.1.4.3.
3.4 The Purchaser shall use its reasonable endeavors to procure the timely
fulfillment of those Conditions Precedent which are set out in Clauses
3.1.2, 3.1.5 and 3.1.6.
4. CLOSING PREPARATIONS
4.1 The parties shall duly execute forms CM25 in terms of which they
consent to waive the statutory period of notice of the general meetings
of shareholders of the Companies which are to be held on the Closing
Date as provided in Clause 5.1.
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4.2 The Seller shall before the Closing Date procure the written
resignations which are to be delivered on the Closing Date in terms of
Clauses 5.2 below.
4.3 The parties shall procure that each of the Companies convenes a meeting
of its directors and that resolutions of directors are passed on or
before the Closing Date -
4.3.1 approving the transfer of the Purchased Shares in that Company to
the Purchaser and/or the Purchaser's nominees;
4.3.2 appointing new directors nominated by the Purchaser; and
4.3.3 accepting the resignations of directors which are to be delivered
on the Closing Date in terms of Clause 5.2.
4.4 The Purchaser shall ensure that EMSA shall before the Closing Date
conduct such consultations with its employees and carry out all such
labor relations procedures as may be required in connection with this
Share Sale Agreement, the Retirement Funds and Health Plan Agreement
which is to be executed in the form of Appendix 3, the establishment of
a new Medical Aid / Health Scheme in terms of Clause 3.1.5 and the
establishment of new Pension and/or Provident Funds in terms of Clause
3.1.6.
5. CLOSING
This Share Sale Agreement shall be implemented on the Closing Date in the
following manner -
5.1 general meetings of the shareholders of the Companies shall be held, as
contemplated in the notices attached to this Share Sale Agreement
marked
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Appendices 1 and 2 and the parties shall vote (and procure that their
nominees vote) in favor of the resolutions set out in such notices;
5.2 the Seller shall deliver to the Purchaser the written resignations of W
Xxxxxxxxx, P A Xxxxx, X X Xxxxxx, A van Jaarsveld and M J G Grobler as
directors of the Companies as from the Closing Date;
5.3 the Seller shall deliver to the Purchaser the share certificates under
which the Purchased Shares are held by the Seller and the Seller's
nominees, together with securities transfer forms duly executed by the
Seller and the Seller's nominees with the name of the transferee left
blank;
5.4 the parties shall procure that prior to the completion of the closing
in terms of this Clause -
5.4.1 the Companies shall duly enter the transfer of the Purchased Shares
to the Purchaser and the Purchaser's nominees in their respective
share registers and issue new share certificates in the name of the
Purchaser and the Purchaser's nominees in respect of the Purchased
Shares;
5.4.2 such new share certificates are endorsed "non-resident" by the
Standard Bank of South Africa Limited, acting as the authorised
agent of the South African Reserve Bank; and
5.4.3 such duly endorsed share certificates are delivered to the
Purchaser or the Purchaser's agent.
5.5 the Purchaser shall pay the Purchase Price to the Seller by interbank
transfer from the Purchaser's bank, Chase Manhattan Bank, New York, to
Standard and Chartered Bank, New York, for the account of ABSA Bank,
account number 121-41-660-601.
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5.6 the Seller shall deliver to the Purchaser -
5.6.1 a duly executed original of the Retirement Funds and Health Plan
Agreement and duly executed originals of Appendices 4 and 5; and
5.6.2 3 (three) certified copies of the resolutions of directors of
Samancor authorising signature of this Agreement, the Retirement
Funds and Health Plan Agreement and Appendices 4 and 5, on behalf
of Samancor.
6. WAIVER OF RIGHTS
With effect from the completion of the closing of this transaction on the
Closing Date, the Seller hereby waives all of its rights under the
Articles of Association of the Companies until registration of the
special resolutions which are to be passed by the Companies on the
Closing Date.
7. REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller hereby represents and warrants to the Purchaser that the
following statements are now true and correct and will be true and
correct as of the Closing Date.
7.1 the Seller is a corporation duly incorporated, validly existing and in
good standing under the laws of Republic of South Africa and has full
corporate power and authority to execute, deliver and perform this
Share Sale Agreement, the Retirement Funds and Health Plan Agreement,
the Deeds of Servitude and Appendices 4 and 5;
7.2 all requisite corporate action to approve, execute and perform this
Share Sale Agreement, the Retirement Funds and Health Plan Agreement,
the Deeds of
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Servitude and Appendices 4 and 5, has been taken by the directors of
the Seller, no such action is required of the shareholders of the
Seller and this Agreement has been duly and validly executed and
delivered by the Seller and constitutes the valid and binding
obligations of the Seller in accordance with its terms;
7.3 neither the execution nor the performance of this Share Sale Agreement,
the Retirement Funds and Health Plan Agreement, the Deeds of Servitude
and Appendices 4 and 5 does or will in any way -
7.3.1 conflict with, violate or result in any breach of any judgment,
decree, order, statute, rule or regulation applicable to the
Seller;
7.3.2 conflict with, violate or result in any breach of any material
agreement or instrument to which the Seller is a party or by which
it is bound, or constitute a default thereunder or give rise to a
right of acceleration of any obligation of the Seller thereunder;
or
7.3.3 conflict with or violate any provision of the Memorandum or
Articles of Association or any resolution of shareholders of the
Seller.
7.4 All agreements and business arrangements between the Seller and
Affiliates on the one hand and the Companies or either of them on the
other hand have been concluded at arm's length for market related
consideration and on normal terms and conditions and the only such
agreements and arrangements are those listed in Appendix 6 to this
Share Sale Agreement.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER
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The Purchaser hereby represents and warrants to the Seller that the
following statements are now true and correct and will be true and
correct as of the Closing Date:
8.1 the Purchaser is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware in the United
States of America and has full corporate power and authority to
execute, deliver and perform this Share Sale Agreement;
8.2 all requisite corporate action to approve, execute and perform this
Share Sale Agreement has been taken by the board of directors of the
Purchaser and this Agreement has been duly and validly executed and
delivered by the Purchaser and constitutes the valid and binding
obligations of the Purchaser in accordance with its terms;
8.3 neither the execution nor performance of this Share Sale Agreement does
or will in any way -
8.3.1 conflict with, violate or result in any breach of any judgment,
decree, order, statute, rule or regulation applicable to the
Seller;
8.3.2 conflict with, violate or result in any breach of any material
agreement or instrument to which the Purchaser is a party or by
which it is bound, or constitute a default thereunder or give rise
to a right of acceleration of any obligation of the Purchaser
thereunder; or
8.3.3 conflict with or violate any provision of the Certificate of
Incorporation, By-laws or any resolution of the board of directors
of the Purchaser.
9. INDEMNITIES
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9.1 The Seller hereby indemnifies the Purchaser against and holds the
Purchaser harmless against any and all loss, damage, liability, or
expenses (including reasonable attorney's fees and expenses) resulting
from or arising out of any inaccuracy in or breach of any
representation or warranty made or given by the Seller to the Purchaser
above.
9.2 The Purchaser hereby indemnifies the Seller against and holds the
Seller harmless against any and all loss, damage, liability, or
expenses (including reasonable attorney's fees and expenses) resulting
from or arising out of any inaccuracy in or breach of any
representation or warranty made or given by the Purchaser to the Seller
above.
10. RESTRAINT UNDERTAKINGS
10.1 It is recorded that the Seller has sold and the Purchaser has purchased
the Purchased Shares in the knowledge and on the understanding that any
competition to EMSA's Business by the Seller or Affiliates contrary to
the provisions of these restraint undertakings would diminish or be
damaging to or destroy the goodwill attaching to EMSA and the profit
generated by EMSA. The Seller acknowledges that this would cause loss
or damage to the Purchaser by diminishing the value of the Purchased
Shares sold to the Purchaser, and the Seller therefore acknowledges the
necessity of protecting the goodwill of EMSA and thereby the value of
the Purchased Shares from competition by the Seller and Affiliates
contrary to the provisions of these restraint undertakings after the
Closing Date.
10.2 For one or more of the reasons set forth in Clause 10.1, the Seller
hereby promises and undertakes in favour of the Purchaser that neither
the Seller nor any Affiliates shall at any time after the Closing Date
(subject to the provisions
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of Clause 10.5), either in the Republic of South Africa or in any other
country in the world -
10.2.1 directly or indirectly be concerned, engaged or interested in any
business similar to or competing with EMSA's Business;
10.2.2 directly or indirectly accept any material benefit, whether in
money or otherwise from any business, the receipt of which may
place the Seller in opposition to EMSA's Business, provided that
this restraint shall not prohibit the Seller from purchasing
products from and receiving benefits in money or otherwise, in
respect of the purchase of products from alternative suppliers who
carry on business in competition with EMSA's Business;
10.2.3 reveal to any person, firm or corporation, any of the trade secrets
or confidential operations, procedures or dealings or any
information concerning the organisation, functions, transactions or
affairs of EMSA or any details of the customers of EMSA or their
requirements of the products provided to them by EMSA, and shall
not use or attempt to use any such information in any manner which
may injure or cause loss either directly or indirectly to EMSA or
may be liable to do so;
10.3 The Seller further undertakes that neither the Seller nor any Affiliate
of the Seller will during the period of 3 (three) years from the
Closing Date employ any person who is an employee of either of the
Companies at the date of signature of this Agreement.
10.4 The Seller undertakes not to do any of the things set forth in Clause
10.2 or 10.3 either directly or indirectly and whether as partner or
owner or principal or agent or representative or consultant or lessor
or shareholder or financier or in any other manner whatsoever.
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10.5 The undertakings by the Seller in terms of Clause 10.2 shall continue
in operation as from the Closing Date for the following periods -
10.5.1 15 (fifteen) years, in the case of Clause 10.2.1 and Clause 10.2.2;
10.5.2 in perpetuity, in the case of Clause 10.2.3.
10.6 No restraint in this Clause shall prevent the Seller from -
10.6.1 holding shares representing up to 5% (five per centum) of any
company or other entity which are listed on a recognized stock
exchange, even though such company itself competes with EMSA's
Business;
10.6.2 holding shares of any company or entity if that company or entity
("the holding company") does no itself compete with EMSA's Business
but controls another company or entity which competes with EMSA's
Business and where such other company or entity constitutes less
than 10% (ten per centum) of the business of the holding company;
or
10.6.3 (notwithstanding the provisions of this Clause 10.6) holding
shareholding interests greater than those provided for in Clauses
10.6.1 and 10.6.2, provided that the prior written approval of the
Purchaser is obtained, which approval shall not be unreasonably
withheld.
10.7 The above restraint undertakings are severable as to -
10.7.1 each calendar year of operation;
10.7.2 each country, state, province and municipal area in the Republic of
South Africa and the rest of the world;
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10.7.3 each part of EMSA's Business;
10.7.4 each product which is sold in the course of conduct of EMSA's
Business.
10.8 If any one or more of the restraints set forth above are invalid or
unenforceable for any reason, the validity of any of the other
restraints shall not be affected thereby.
11. SHAREHOLDERS AGREEMENT
11.1 The parties acknowledge that the Deeds of Servitude will incorporate
the servitudes listed in Clause 16(b)(i),(ii),(iii),(iv),(v) and (vi)
of the Shareholders Agreement dated 4 October 1971 between Union
Carbide Corporation and AMCOR Limited.
11.2 Save for the servitudes referred to in Clause 11.1, this Share Sale
Agreement supersedes and cancels the Shareholders Agreement referred to
in Clause 11.1.
12. DEEDS OF SERVITUDE
12.1 The parties shall procure the registration of the Deeds of Servitude as
soon as possible after the Closing Date. If any difficulty should be
experienced by the parties in executing or registering the Deeds of
Servitude in the forms in which they are attached to this Agreement, or
if it for any reason becomes impossible to register the Deeds of
Servitude in their current form, the Seller shall take all reasonable
steps and shall sign all necessary documents to place EMSA in the same
or a similar position as if the Deeds of Servitude were registered.
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12.2 As no servitude diagrams approved by the Surveyor General are at
present available, the parties record their mutual intention that the
servitudes which are granted by the Seller in terms of the Deeds of
Servitude shall -
12.2.1 in the case of the railway siding servitude, operate as nearly as
reasonably practical over those portions of the Seller's Premises
which are shown on the drawing attached to this Agreement marked
Appendix 7;
12.2.2 in the case of the powerline servitude, operate as nearly as
reasonably practical over those portions of the Seller's Premises
which are shown on the drawing attached to this Agreement marked
Appendix 7;
12.2.3 in the case of the water pipeline servitude, operate as nearly as
reasonably practical over those portions of the Seller's Premises
which are shown on the drawing attached to this Agreement marked
Appendix 7;
12.2.4 in the case of the gas pipeline servitude, operate as nearly as
reasonably practical over those portions of the Seller's Premises
which are shown on the drawing attached to this Agreement marked
Appendix 7;
12.2.5 in the case of the sewage pipeline servitude, operate as nearly as
reasonably practical over those portions of the Seller's Premises
which are shown on the drawing attached to this Agreement marked
Appendix 7.
12.3 The Seller hereby indemnifies EMSA, Carbographite and the Purchaser
against and holds EMSA, Carbographite and the Purchaser harmless
against any claim for any rehabilitation or otherwise in terms of any
law, regulation or by-law arising out of any past or present operations
by the Seller on EMSA's property outside of the currently fenced
boundaries.
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13. EXPENSES
13.1 The stamp duty on the transfer on the Purchased Shares from the Seller
to the Purchaser shall be borne by the Purchaser.
13.2 The attorney's charges, transfer duty, value added tax and stamp duty
incurred in respect of the Deeds of Servitude shall be borne by the
Seller.
13.3 Save as provided in Clause 13.1, Clause 13.2 and the Retirement Funds
and Health Plan Agreement, each of the parties shall pay all of its
expenses incident to the negotiation, preparation and consummation of
this Share Sale Agreement and all transactions contemplated by this
Share Sale Agreement.
14. SUPPORT
Each party undertakes to do all such things and sign all such documents
as may be reasonably necessary or incidental to give effect to the terms,
conditions and import of this Agreement.
15. INDULGENCES
No indulgence, latitude or extension of time that may be allowed by
either party to the other shall in any circumstances be deemed to be
waiver of rights under this Agreement and the party granting the
indulgence, latitude or extension shall remain entitled to require strict
and punctual compliance by the other party with each and every provision
of this Agreement.
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16. ENTIRE AGREEMENT
16.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and neither party shall be
bound by any undertakings, representations or warranties not expressly
recorded in this Agreement.
16.2 No amendments, modifications or additions hereto or waiver of rights
hereunder shall be of any force or effect whatsoever unless reduced to
writing and signed by the parties hereto or by their duly authorised
signatories.
17. ARBITRATION
17.1 Any dispute between the parties in regard to any matter arising out of
this Agreement or its interpretation or their respective rights and
obligations under this Agreement or its cancellation or any matter
arising out of its cancellation, shall be submitted to and decided by
arbitration.
17.2 The arbitrator shall be a practising Queen's or Senior Counsel of not
less than 5 (five) years' standing who shall be agreed upon between the
parties, or failing agreement, appointed by the then Chairman of the
Johannesburg Bar Council.
17.3 The arbitration shall be held in Johannesburg in accordance with such
procedures as may be determined by the arbitrator, and may be held, if
he considers it appropriate, in an informal and summary manner on the
basis that it shall not be necessary to observe or carry out the usual
formalities or procedures, including the delivery of pleadings, the
making of discovery or the observance of the strict rules of evidence.
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17.4 Subject to the other provisions of this Clause, each arbitration shall
be held in accordance with the provisions of the Arbitration Xxx, 0000,
as amended.
18. GOVERNING LAW
18.1 This Agreement shall be governed by and interpreted in accordance with
the law of the Republic of South Africa in all respects.
18.2 The parties hereto consent and submit to the jurisdiction of the
Witwatersrand Local Division of the High Court of South Africa for the
purposes of any legal proceedings arising from or in connection with
this Agreement.
19. INTERPRETATION
19.1 In the interpretation of this Agreement, unless the context otherwise
requires or indicates, words signifying -
19.1.1 the singular shall include the plural and vice versa;
19.1.2 any one gender shall include the other genders; and
19.1.3 natural persons shall include juristic persons, trusts,
partnerships, associations, deceased estates and insolvent estates.
19.2 Clause headings do not form part of this Agreement and shall not be
taken into account for the purposes of interpretation.
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20. GENERAL
20.1 Neither party may cede or assign any of its rights or delegate any of
its obligations in terms of this Agreement without the prior written
approval of the other party.
20.2 Each party warrants and undertakes to the other that it is not acting
as undisclosed agent or nominee for any person in entering into this
Agreement and is entering into this Agreement to secure the benefits
of this Agreement for itself only and for no other person.
20.3 If any Clause or term of this Agreement should be invalid,
unenforceable or illegal, then the remaining terms and provisions of
this Agreement shall be deemed to be severable therefrom and shall
continue in full force and effect unless such invalidity,
unenforceability or illegality goes to the root of this Agreement.
21. ADDRESSES FOR LEGAL PROCESSES AND NOTICES
21.1 Each party chooses for the purposes of this Agreement the following
addresses:
21.1.1 Samancor:
XXXXXX XXXXXXX XXXXXX XXXXXXX
X.X. Xxx 0000 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000 Xxxxxxxxxxxx 0000
Xxxxxxxx xx Xxxxx Xxxxxx Xxxxxxxx xx Xxxxx Xxxxxx
FAX NO.: (x00 00) 000 0000
ATTENTION: Xx. X.X. Xxxxxx
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21.1.2 UCAR:
XXXXXX XXXXXXX XXXXXX XXXXXXX
UCAR International Inc. UCAR International Inc.
Section J4 Section J4
Danbury, Connecticut Danbury, Connecticut
XXX 00000 XXX 06817
FAX NO.: (x0 000) 000-0000
ATTENTION: Xxxxx X. Xxxxxxx, Vice President
21.2 Any notice to be served on any of the parties may be posted to the
party by registered or certified mail at the Postal Address or sent by
telefax to the party's telefax number or delivered to the party at the
Street Address specified in Clause 21.1. Each party chooses the Street
Address set out in Clause 21.1 as the party's domicilium citandi et
executandi for all purposes under this Agreement.
21.3 Any notice or other communication to be given to any of the parties in
terms of this Agreement shall be valid and effective only if it is
given in writing.
21.4 A notice to any party which is sent by registered post or certified
mail in a correctly addressed envelope to the address specified in
Clause 21.1 shall be deemed to have been received (unless the contrary
is proved) on the fourteenth day after the date it was posted, or which
is delivered to the party by hand at that address shall be deemed to
have been received on the day of delivery, provided it was delivered to
a responsible person during ordinary business hours.
21.5 Each notice by telefax to a party at the telefax number specified in
Clause 21.1 shall be deemed to have received (unless the contrary is
proved) -
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21.5.1 if it is transmitted at least 4 (four) hours before the close of
business of the receiving party, within 4 (four) hours of
transmission;
21.5.2 if it is transmitted less than 4 (four) hours before the close of
business of the receiving party, within 4 (four) hours of the
commencement of the first business day of the receiving party after
the day on which it is transmitted.
21.6 Notwithstanding anything to the contrary in this Clause 21, a written
notice or other communication actually received by a party (and for
which written receipt has been obtained) shall be adequate written
notice or communication to the party notwithstanding that the notice
was not sent to or delivered at the party's chosen address.
21.7 Each party shall be entitled to change the party's address or telefax
number for the purposes of this Clause 21 by giving written notice to
that effect to the other parties, provided that such notice shall not
take effect until the expiry of 14 (fourteen) days after the notice is
given.
SIGNED at Sandton on 21 April 1997.
For: SAMANCOR LIMITED
/s/ X. X. Xxxxxx
-------------------------------------
Signatory: X. X. Xxxxxx
Capacity: Director Samancor
Authority:
/s/ P. A. Brink
-------------------------------------
Signatory: P. A. Brink
Capacity: Director Samancor
Authority:
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SIGNED at Sandton on 21 April 1997
For: UCAR CARBON COMPANY INC.
/s/ X. X. Xxxxxxxxx
-------------------------------------
Signatory: X. X. Xxxxxxxxx
Capacity: General Manager EMSA
Authority: Power of Attorney
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